LHR report and exhibition illustrate significant barriers to nationality in SA

Statelessness is a reality for more than 12-million people around the world, according to United Nations High Commissioner for Refugees. In absence of a system to identify and protect the stateless in South Africa, it will be challenging to obtain reliable figures on this population.

A stateless person is one who is not recognised as a national by any country. Stateless persons are not protected as citizens and may not access any of the rights that flow from nationality.

Today, Lawyers for Human Rights (LHR) together with the United Nations High Commissioner for Refugees (UNHCR) launches the photographic exhibition, “South Africa’s Invisible People” in commemoration of Human Rights Day on 21 March. LHR also releases its report, “Statelessness and Nationality in South Africa”, which explains the nature and causes of statelessness in South Africa with recommendations on how statelessness can be reduced and prevented. The report also draws attention to the human impact of not having a nationality through detailed case studies and portraits.

A stateless client named *L.N. told LHR, “I did not choose to be stateless. Perhaps that is my destiny... Well, I do not know if it was God or Satan who made me stateless.” The challenges of daily life as a stateless person are endless. One cannot work legally, obtain an education, register one’s marriage or children’s births, access social grants, buy land, obtain an ID document or passport, enter or leave any country legally, or get a driver’s license or cell phone contract. Even medical care and health insurance can be out of reach. One can be arrested and detained repeatedly for purposes of deportation, but one may not be deportable and could spend a prolonged period in detention. The stateless are often trapped in poverty over generations due to their inability to access nationality.

LHR has reached more than 2 000 people via the work of the Statelessness Project through outreach, mapping and legal services. We are assisting persons from more than 20 countries of origin with various problems relating to nationality. What has been surprising is that statelessness is a problem that impacts not only foreign nationals but also those with claims to South African citizenship.

LHR makes five main recommendations to government in the report:

Recommendation 1: Sign and ratify the UN conventions on statelessness.

South Africa must sign and ratify the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. This will bring South Africa’s law and practice in line with international standards and will strengthen the right to nationality for South African citizens as well as those from other nations.

At a UNHCR conference in Geneva in December 2011, South Africa delivered a pledge to sign and ratify both conventions following an internal consultative process. LHR hopes the new Minister will prioritise this issue during 2013.

Recommendation 2: Use current legal mechanisms to prevent and reduce statelessness.

  • Ensure that children born in South Africa who are stateless are registered as South African (Citizenship Act).
  • Use the exemption process to provide lawful status to stateless people (Immigration Act)
  • Ensure that foundlings, children found on the territory whose nationality or parentage are unknown, are registered as South African (1930 Hague Convention on Certain Questions relating to Conflict of Nationality Laws).
  • Utilise the Minister’s ability to issue citizenship certificates “in cases of doubt” (Citizenship Act).

Recommendation 3: Ensure that South African law is not creating statelessness.

  • Remove the absolute requirement of a foreign birth certificate for citizens born abroad to register; allow applicants to be interviewed and present other forms of evidence.
  • Provide immigration status to unaccompanied foreign minors as part of the care and protection process, for those who are not refugees and whose best interest is not served by repatriation.
  • Allow parents to register the births of children born in South Africa regardless of parents’ immigration status and/or lack of identity documents.

Recommendation 4: Create a dedicated identification and protection system for stateless people.

The largest gap in the law is the absence of any dedicated mechanism to identify and protect stateless people.

  • As an interim measure, amend the Immigration Act to extend legal immigration status to stateless persons in line with international law.
  • Draft new legislation to regulate the identification and protection of stateless persons.

Recommendation 5: Ensure just administrative action for decisions concerning enabling documents and nationality.

  • Ensure that just administrative action is enforced, particularly in the blockage of South African IDs and applications for late registration of birth. Individuals must receive written reasons for negative decisions, notice of the right to an appeal and other protections as outlined in the Promotion of Administrative Justice Act.

LHR’s Jessica George, who works in the Statelessness Project, says “Now is the time to end the invisibility of stateless people in South Africa. We can no longer ignore this vulnerable population. Statelessness impacts families, communities and the nation as a whole. Solutions must be made available so that stateless people can contribute to South African society rather than live in the shadows.”

*Name concealed to protect individual’s identity.